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As the UK find themselves in another national lockdown, with restrictions in place at some level until at least 21st June, it is important to revisit the issue of domestic abuse and how this can impact your home and living arrangements.
Domestic abuse can be displayed in different forms and people may find that they are experiencing behaviours and actions which they haven’t before or that pre-existing abuse is exacerbated due to the increased stress levels surrounding Coronavirus or time spent with the abuser at home.
An Occupation Order determines who will live at the family home. It can sometimes be used to exclude someone completely from a property or can set rules to enable a property to be shared. Granting an Order depends on the rights of you and the other party to occupy the property in question.
For an application to be successful the so called “balance of harm” test must be applied. Essentially the Judge will consider whether you are likely to suffer significant harm due to the conduct of the other party if the Occupation Order is not made. The test includes the need to consider whether making an Occupation Order will cause greater harm to be suffered by the other party.
In deciding whether or not to make an Occupation Order the Court will consider all of the circumstances of the case including the housing needs of the parties, the financial resources of the parties, and the likely effect of any decision by the Court not to exercise its powers on the health, safety or wellbeing of you and the conduct of the parties towards each other.
An Occupation Order is made on the same application as a Non-molestation order. A Non-molestation order is an order prohibiting someone from being violent towards you, or threatening violence against you, harassing, pestering, intimidating or inconveniencing you either directly or indirectly, i.e. via social media, text messages, phone calls etc. A Non-molestation Order can also prevent someone from instructing or encouraging another person to behave this way against you on their behalf. These orders sometimes go hand in hand but can also be applied for separately.
Both orders are usually made for up to six months, but it is possible to apply for further Orders. An Occupation Order does not otherwise affect any legal or beneficial interest either of the parties may have in the property or any claim in subsequent proceedings, however this is dependent on your rights to occupy the property in the first place as discussed above, i.e. whether you are married, cohabitees etc. and how the property is owned.
The key message here is that domestic abuse is unacceptable in any situation and for anyone who feels they are at risk of abuse, particularly within their home and are living with their abuser and have no way of ‘escape’ during these unprecedented times, it is important to remember that we can still issue applications for Non-Molestation and Occupation Orders remotely, with or without notice, and the Court can hear these applications remotely as well. It should also be noted that the current Government restrictions allow a person who is felling domestic abuse to leave their home.